What's New in Commonwealth Compensation

Liability

Foster and Telstra Corporation Limited [2010] AATA 89 (8 February 2010) Brisbane

These proceedings concerned an application for compensation claimed under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for injuries which had developed over a number of years.

The Applicant made an application for compensation in February 2007 for tendonitis of the right wrist. In April 2007, the Respondent accepted liability for soft tissue injury to the right wrist from 15 February 2007. The Respondent made two further determinations, firstly in August of that year and then in October 2007, revoking its April 2007 determination where it accepted liability for tendonitis. As a result of the Respondent’s decision to close one of its call centres, the Applicant was made redundant in November 2007. The Respondent conducted further review of the matter in a motion dated 22 December 2008 and subsequently revoked its decision made in October 2007. It determined that it was not liable to compensate the Applicant for tendonitis but was liable with respect to a ganglion condition. It further determined that liability should cease in July 2007 as the Applicant did not continue to suffer the effects of the ganglion condition from that date.

Again the Respondent reviewed the matter and on 2 February 2009 it revoked the decision of 22 December 2008 and determined that the Applicant no longer suffered the effects of a compensable injury as from 31 December 2007, but that the Respondent was liable for compensation for ganglion of the right wrist. It also determined that as a result, the Respondent was not liable to pay medical expenses (section 16 of the 1988 Act) or incapacity payments (section 19 of the 1988 Act) as from 31 December 2007.

After establishing that the Respondent was entitled to review its decisions of own motion, the Tribunal considered whether the Applicant suffered from either tendonitis or ganglion and, if so, whether any of those conditions were attributable to the Applicant’s employment with the Respondent.

On the basis of specialist medical opinion, the Tribunal found that the Applicant did not suffer from a tendonitis condition. The evidence indicated that the Applicant had a ganglion which was removed in 2007, and that the only explanation for the pain experienced by the Applicant since December 2007 was the growth of a further ganglion due to constitutional factors. The Tribunal made a finding of fact that the Applicant had a “disease” within the meaning prescribed in the Act.

In light of their findings above and on the basis of medical evidence before it, the Tribunal noted that there was no evidence of attribution or causation which related to the Applicant’s employment with the Respondent. The strength of the medical evidence showed that there was a temporal connection between the Applicant’s employment with the Respondent and an aggravation of his ganglion, however it was clear that the ganglion had been surgically removed before his redundancy and that any resulting pain would have been expected by the medical experts to have resolved by December 2007.

The Tribunal found that the evidence could not sustain an argument that the Applicant’s condition was contributed to a significant degree as required by the statute. On the basis of the decisions in March v EMH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; 99 ALR 423 and Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 CLR 536 and the evidence before it, the Tribunal found that causation of the Applicant’s ganglion could not be attributable to his employment with the Respondent.

The Tribunal affirmed the decision under review.

Reardon and Comcare [2010] AATA 110 (2 February 2010) Canberra

The Applicant sustained a series of physical injuries in 2000 and 2005 and he suffered a psychological injury and incapacity for work as a result. The Respondent accepted the Applicant’s claims for compensation in respect of those injuries and in March 2009, the Respondent required the Applicant, under section 57 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”), to undergo a medical examination by a consultant psychiatrist, in relation to his accepted psychological injury.

On the day for examination, the Applicant tripped in the gutter at the edge of the road across from the place of examination, and subsequently fell and injured his left ankle. In May 2009, the Applicant submitted a claim for workers’ compensation in respect of the injury to his ankle.

The issue for the Tribunal’s determination was whether the Applicant’s left ankle injury arose out of or in the course of his employment. The Tribunal highlighted the relevant legislation in this respect, namely the 1988 Act, and noted that the circumstances in which an injury was to be treated as having arisen out of or in the course of employment were expanded upon in non-exhaustive terms at section 6 of the 1988 Act. In particular, it was noted that an injury which was sustained while “travelling” to a place for a medical examination was subject to the exclusionary effect of subsection 6(2) of the 1988 Act.

The Tribunal explored various methods of interpreting the relevant legislative provisions and it noted that when considering the combined effect of subsections 6(1)(d), (f) and (2), that one must distinguish between “travelling” to a place being “at” a place. It was thus necessary to determine whether the Applicant was travelling or whether he had arrived at a place for the purpose of undergoing a medical examination when his claimed injury occurred.

The Tribunal noted that the phrase “the employee was at a place for the purpose of” in subsection 6(1)(f) of the 1988 Act was specific and purposive and the concept of being “at” “a place” signified attendance or arrival at that place. It was highlighted that the context of the provision, however, guided interpretation, in that the “place” was not any place at large, but a place relative to the purpose of a medical examination. On that basis, the Tribunal found that the Applicant’s claimed injury was excluded by operation of subsection 6(2) of the 1988 Act given that he had not yet arrived to the place of his examination when his claimed injury occurred.

Procedure & costs

Foster and Telstra Corporation Limited [2010] AATA 89 (8 February 2010) Brisbane

These proceedings concerned an application for compensation claimed under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for injuries which had developed over a number of years. The relevant decisions made by the Respondent in relation to this application were outlined under “Liability”.

One of the questions for the Tribunal was whether the Respondent was entitled to review its decision of its own motion. This question involved a consideration of section 62 of the 1988 Act. The Tribunal highlighted that in the ordinary course of merits review under section 26 of the Administrative Appeals Tribunal Act 1975 (Cth), an original decision maker may not further review that decision unless the enactment that authorises the making of the application expressly permits the decision to be altered. The Tribunal noted that that exceptional case was provided for by section 62 of the 1988 Act which allows for decisions to be reconsidered by the Respondent or by its delegate. Therefore the decision of 2 February 2009 by the Respondent was held to be the legally effective decision under review, the former decisions having been lawfully revoked (Penfold and Military Rehabilitation Compensation Commission [2006] AATA 90).

Grimsley and Telstra Corporation Limited [2010] AATA 106 (12 February 2010) Brisbane

In Feburary 2004, the Applicant injured her right knee during the course of her employment with the Respondent and subsequently made a claim for compensation. In March 2004, the Respondent accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for a “right knee injury” but also determined that the Respondent ceased to be liable to pay compensation on and from that date on the basis that no further treatment was required and that the Applicant had made good recovery from the injury.

That decision was the subject of an application to the Tribunal and in November 2005, the Tribunal made a decision, by consent, by which the Respondent was liable to pay compensation under sections 16 and 19 of the 1988 Act for the condition “right knee injury and an aggravation of left knee injury” sustained in February 2004. In June 2006, the Respondent determined that the Applicant had ceased to suffer from the effects of the compensable injury” and that there was no liability to pay compensation for medical treatment or incapacity for work under sections 16 or 19 of the 1988 Act. That decision was affirmed on reconsideration in August 2006. The Applicant sought a review of the decision in the Tribunal and in July 2009 all proceedings between the Applicant and the Respondent were settled on terms reduced to writing and signed by, or on behalf of, the parties. The Tribunal made a decision pursuant to section 42C(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) affirming the decision under review.

In August 2009, the Applicant wrote to the Respondent’s Insurer making what was treated by the insurer as a claim for an acceptance of ongoing liability for her right knee condition and for compensation for permanent impairment of that knee. A determination was made in September 2009 that the Respondent had no liability under any of sections 16, 19, 24 or 27 of the 1988 Act. That decision was affirmed on reconsideration in October 2009. These proceedings were commenced thereafter.

In the present proceedings, the Tribunal was not concerned to determine the merits of the Applicant’s claims, rather it was only concerned to decide the preliminary question raised by the Respondent which was whether the application ought to have been dismissed pursuant to the Tribunal’s powers under either or both of sections 33 or 42B(1) of the AAT Act. The basis of the Respondent’s application was that the Applicant was seeking to re-litigate matters determined against her by the consent decision made in July 2009.

The Applicant pointed to four features as warranting the conclusion that she was not seeking merely to re-litigate issues already decided, namely:

• evidence she intended to call from her general practitioner that her right knee pain was increasing and that her level of whole person permanent impairment arising from that condition had reached 20% compared to the level of 10% that he estimated in August 2005
• her own evidence that the pain was increasing
• her claim related to a different period of time to that the subject of the earlier proceedings
• she had not previously sought compensation for permanent impairment.

The Tribunal did not accept the Applicant’s argument. It noted that prima facie, the consent decision in the matter ought to be regarded as having determined the matters in controversy, one of which was the issue of causation. The material before the Tribunal in July 2009 pointed overwhelmingly to the conclusion that the consent decision to affirm the Respondent’s determination was the correct decision. Whilst the medical evidence put for the Applicant indicated that she continued to suffer from the effects related to her right knee from her work related injury in July 2007, this opinion did not lead the Tribunal to question the correctness of the consent decision given that there were numerous reports, more proximate in time and unequivocally to a contrary effect.

The Tribunal relied on its power under section 33 of the AAT Act to dismiss the application for review without proceeding to a hearing on the merits. It did need not decide that part of the Respondent’s application relied upon the power in section 42B(1) of the AAT Act.

Reardon and Comcare [2010] AATA 110 (2 February 2010) Canberra

As outlined above, the Applicant submitted a claim for workers’ compensation in respect of an injury to his ankle, which was subsequently rejected by the Respondent. The Applicant applied for review of that decision and asserted that his claimed left ankle injury arose out of or in the course of his employment.

Whilst questions of liability were the subject of the proceedings, counsel for the Applicant asserted in the alternative that the medical costs the Applicant incurred in relation to his claimed ankle injury should be reimbursed as part of his costs in attending an appointment with a consultant psychiatrist under subsection 57(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”).

The Tribunal briefly dealt with this matter, highlighting that the Applicant had not claimed and the Respondent had not made a decision concerning any reimbursement of medical treatment costs under subsection 57(3) of the 1988 Act. As such, the Tribunal could only exercise the powers and discretions that were conferred upon the person who made the decision under review for the purpose of reviewing that decision. The Tribunal noted that its jurisdiction was enlivened by an application under section 64 of the 1988 Act and subsection 64(1)(a) provided that a claimant may apply to the Tribunal for review of a reviewable decision as defined by section 60 of the 1988 Act. It followed that even if the Respondent had made a decision under subsection 57(3) of the 1988 Act, a decision of that kind was not within the meaning of “reviewable decision”, thus the Tribunal did not have jurisdiction to review such a decision.

Incapacity

Foster and Telstra Corporation Limited [2010] AATA 89 (8 February 2010) Brisbane

In light of its findings in relation to liability, the Tribunal found no justification for any payment for incapacity as the requirements of section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) were not satisfied.

Permanent impairment

Mahon and Telstra Corporation Limited [2010] AATA 102 (11 February 2010) Sydney

The issue in this matter was the degree of incapacity occasioned to the Applicant by a work-caused injury to his right knee. In January 1997, the Applicant suffered injuries to his right knee and forearms whilst in the employ of the Respondent. By a determination made in February 1997, liability was accepted for injuries described as “multiple soft tissue injuries to the right knee both forearms and lower back”.

In May 2002, the Respondent revoked a determination made in November 2001 approving ongoing weekly incapacity benefits for the said injury. By decision made in March 2004, the Tribunal decided that the Applicant was entitled to the ongoing payment of compensation for injuries more particularly described as “injury to the right knee and ischaemic damage to the median nerve of both forearms.”

By determination made in October 1999, the Respondent had determined that the Applicant had suffered a combined total of 26% whole person impairment as per the Guide to the Assessment of the Degree of Permanent Impairment, (“the Guide”) 1st edition. A further claim for permanent impairment was lodged by the Applicant in October 2007 claiming an increase in the degree of permanent impairment suffered by him.

As to the Major Criteria specified in Table 9.7, the Tribunal was satisfied that the Applicant walked at a moderately reduced pace. With respect to the Minor Criteria, whilst the Tribunal did not accept that the Applicant’s knees gave way frequently resulting in falls, the Tribunal was satisfied that the Applicant demonstrated a medical need for a brace and he was unable to rise from a sitting to standing position without the use of one hand. On the basis of these findings, the Tribunal was satisfied that the Applicant met one major and two minor criteria such as to exhibit an incapacity of 30% under Table 9.7 of the Guide, 2^nd Edition.

The Tribunal set aside the decision under review and the matter was remitted to the Respondent with the Direction that the Applicant’s degree of incapacity from the injury was 30%.

Medical expenses

Excell and Comcare [2010] AATA 104 (12 February 2010) Hobart

The application for review concerned a determination which was made in August 2009 denying liability for massage treatment on the basis that it was not reasonable treatment for the compensable condition. The Respondent’s decision to refuse the claim was based on a finding that massage treatment was not treatment that was directed towards treating the cause of the compensable psychological condition, but rather the symptoms and therefore did not constitute reasonable medical treatment for the purposes of section 16 of the Safety, Rehabilitation and Compensation Act 1988 (“1988 Act”).

In these proceedings, the Applicant contended that the Respondent’s decision to refuse her claim for payment of massage treatment was incorrect. The Applicant maintained that massage treatment therapy assisted her in the past to achieve a level of functioning that was acceptable to her.

The issue for the Tribunal was whether massage treatment was reasonable treatment for the Applicant's accepted condition of post-traumatic stress disorder (“PTSD”). There was no dispute that massage therapy treatment constituted medical treatment as it was defined in section 4(1) of the 1988 Act. The Tribunal was satisfied that massage therapy treatment constituted therapeutic treatment provided it was administered by a registered masseur in accordance with sub-paragraph (d).

The Tribunal then had to determine whether it was reasonable for the Applicant to obtain massage therapy treatment in the circumstances as required by section 16 of the 1988 Act. In the present case, there was no medical evidence that massage therapy treatment had been or would have any curative effect for the Applicant’s accepted condition of PTSD. At best it had provided some short term relief and comfort.

The Tribunal was unable to accept that massage therapy constituted reasonable medical treatment for the Applicant’s accepted condition of PTSD. The weight of the medical evidence was that massage therapy had no curative effect or long term benefit in the treatment of psychiatric illnesses. On an objective basis it was not treatment that it was reasonable for the Applicant to obtain in the circumstances of her illness. There were other alternative forms of treatment as outlined by a consultant psychiatrist that were likely to provide longer term benefits.

The Tribunal affirmed the decision under review.

Foster and Telstra Corporation Limited [2010] AATA 89 (8 February 2010) Brisbane

In light of its findings in relation to liability, the Tribunal found no justification for any payment for medical treatment as the requirements of section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) were not satisfied.